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Marriage and Family as the New Property: Obergefell, Marriage, and the Hand of the State

24 Pages Posted: 3 Oct 2015 Last revised: 15 Jan 2016

Helen M. Alvare

George Mason University - Antonin Scalia Law School, Faculty

Date Written: October 2, 2015

Abstract

Prior to the Supreme Court’s 5-4 decision in Obergefell v. Hodges creating a constitutional right to same-sex marriage, it was nearly universally acknowledged that the state did not have constitutive authority over human marriage, which was “up from nature” rather than “down from the state.” In other words, the nature of marriage was determined by pre-given qualities of human, opposite-sexed pairs and the organic qualities and consequences of their union. Post-Obergefell, however, even marriage has become a form of “new property”: a state-determined status, entitling recipients to various rights and benefits. Relying upon classic texts by Professors Robert Reich and Mary Ann Glendon regarding the rise of government and the decline of families as guarantors of security for American citizens, this article investigates the implications of marriage as “the new property” for the quality and stability of marriage and the future of children.

Keywords: children’s rights, citizen freedom, entitlement, family, governmental benefit, Justice Anthony Kennedy, marriage, new property, Obergefell, same-sex marriage, soulmate relationship, U.S. Supreme Court

JEL Classification: K11

Suggested Citation

Alvare, Helen M., Marriage and Family as the New Property: Obergefell, Marriage, and the Hand of the State (October 2, 2015). Regent University Law Review, Vol. 28, No. 1, pp. 49-70, 2015; George Mason Legal Studies Research Paper No. LS 15-27. Available at SSRN: https://ssrn.com/abstract=2668718

Helen M. Alvare (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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